Law and Ideology

Law and Ideology

Michael Mukasey Fall 2013

Editor’s Note: The following is adapted from a speech delivered by former Attorney General Michael Mukasey in Washington. It is included in this issue devoted to governmental overreach because the ideological underpinnings of governments determine how both the United States and its adversaries approach the issue rule of law – the sine qua non of democratic restraint on governmental overreach. The spread of religion-based government, specifically Islamic government—poses a serious potential threat to American national security interests.

In the spirit of the ancient Chinese curse, “May you live in interesting times,” these are interesting times.

It is useful to talk about three places where the times are particularly “interesting”—in the Middle East in general, in Turkey in particular, and in the United States—and how they are connected. I will give it away at the beginning so there is no suspense about where I am going. We live in a dangerous world. Much of the danger comes from Islamist extremism, a force that has been directed at us in the past and will be in the future. But it is a force that in the years ahead will mainly be directed within and among Muslims, just as terrorist acts have killed more Muslims than non-Muslims in the past.

But some of it will come our way, just as it has in the past.

The Middle East

The Egyptian experiment in Islamist government, Muslim Brotherhood government, appears to be over. But much of the so-called “Arab Spring” in Egypt and the tenure of Mohammed Morsi would have been disturbing to Americans, if they had seen it in Western media. It would have clarified for many the difference between democratic government and Islamist government. As the revolution unfolded, Americans saw fascinating coverage from Tahrir Square of the modern, secular side of Egypt and the influence of Twitter and Facebook; not so much of the public rape of a CBS journalist in Tahrir Square to shouts of “Allahu Akhbar.” Even less has been seen of the unfolding of undemocratic and dangerous trends.

During President Morsi’s aborted administration, The Sinai Peninsula, for example, emerged as a refuge for Hamas-trained terrorists who traveled freely from Gaza, importing weapons and launching attacks that killed Israelis and, increasingly, kill Egyptians. Public attention was not focused there. During the Morsi administration as well, Americans saw little coverage of the return to Egypt of Sheikh Yusuf Qaradawi and his triumphant sermon in Tahrir Square. Qaradawi is praised in many quarters in the West as a liberal and reformer who has, among other things, stood up for women’s rights, and so he has—to the point of issuing a fatwa authorizing women to participate in suicide bombings equal to men.

President Morsi gave his inaugural speech in Tahrir Square, but where was the coverage of his remark that one of his principal goals was to secure the release of Omar Abdel Rahman, the Blind Sheikh, who sits in a U.S. prison convicted on terrorism-related charges? Mr. Morsi was on Egyptian television in a mosque answering “amen” to a prayer for the dispersion and destruction of the Jews—a sort of a “Reverend Wright” moment for him. It was not seen on American television—only in a YouTube video and thus only by a minority of Americans. He referred to Jews as the descendants of apes and pigs; a statement deplored by presidential press secretary Jay Carney but with otherwise no penalty. That’s a pity, because Mr. Morsi was not improvising, he was quoting Koranic scripture.

Morsi’s departure at the hands of the military, while itself an undemocratic act, removed a most undemocratic regime. Americans have to know that and know that elections do not, all by themselves and without more, make democracies.

In Tunisia, where the Arab Spring began, Islamists are in control. Their leader, Rashid Ghannouchi, like Qaradawi, returned from exile to lead his party. Barely five years ago, he called for the public hanging of two Tunisian intellectuals (one a woman) who were too vigorous for his taste in their support of women’s rights. But even a member of The Wall Street Journal editorial staff in a column several months ago assured us that Ghannouchi is a new breed of Islamist—with a sense of irony and of humor. Ghannouchi even assured the Journal editor that he would not seek to ban alcohol in Tunisia because it is well known that alcohol is consumed privately, and he recalled that the United States had an unpleasant experience when it tried that experiment some decades ago with Prohibition. Quite ironic and humorous. And apparently the spiritual successor to the parade of Soviet premiers back in the 1970’s who, as we were told when each took power, must be men of peace because they drank scotch and listened to jazz.

Some months ago, the op-ed page of The New York Times, that communal warm bath of bien-pensant liberal thought, carried an article by columnist Roger Cohen assuring Americans that the U.S. government could work with the Muslim Brotherhood, which he portrayed as centrist pragmatists. Pragmatic, perhaps; centrist is another matter. The Muslim Brotherhood motto, which has not changed from its founding to today, is, “Allah is our objective; the prophet is our leader; the Quran is our law; jihad is our way; dying in the way of Allah is our highest hope.” The fact that the organization still exists after decades of suppression by governments in Egypt from Nasser to Mubarak, is testimony to its resilience, and to the ability of its members to use tactical deception—there is a word for it: taqiyah—to tack in one direction and then another toward an ultimate goal.

Sharia in Governance

It is by no means accepted in this country that there is a need to understand Islamism and take a defensive posture with respect to it, mainly because Islamism claims to be, and in fact is, rooted in a religion. Because respect for diverse religious observance in the United States is written into our founding documents, and because of the limited role that religion plays in our own country’s governance, Americans tend to think of religion as only one aspect of a person’s life, and a private, non-governmental aspect, at that.

However, many of the world’s 1.4 billion Muslims adhere to a religion that agrees on the need to impose sharia (Islamic law) on the world, beginning with that parts that at any time were Muslim (referred to as Dar al Islam, the domain of Islam). This includes not only what we would conventionally think of as Muslim countries, but also Spain—referred to by Islamists as al-Andalus and once a part of the Islamic caliphate—as well as any part of the Western world that comes under control of Muslims. The result is that some Muslims-majority suburbs of Paris are “no-go zones” for police and even fire fighters unless they have the consent of local Islamic authorities.

The other part of the world, to which there is also an obligation to spread sharia, is called—significantly—Dar al Harb (the domain of war). The war is a religious one to impose sharia, a comprehensive legal framework that has spiritual aspects, to be sure, but regulates behavior Americans would call the domain of secular government—economic, social, legal, military and political activity. Because it is all-encompassing, and lays claim to being divinely inspired, it regards the Western notions of “the will of the people,” “self-determination,” minority rights and limited government that are enshrined in democratic societies, as anathema. That is to say, sharia is totalitarian and profoundly anti-democratic.

And this is not an academic reading of obscure texts. Within the last few months, a Saudi cleric, a former dean of the sharia faculty at Islamic University at al Medina in Saudi Arabia, praised al Qaeda and the killing of Ambassador Christopher Smith during the September 11, 2012 attack on the U.S. facility in Benghazi because he represented an “infidel government” and therefore did not deserve diplomatic protection. In January, Egyptian Salafi leader Muhammad al Zawahiri, brother of al Qaeda leader Ayman al Zawahiri, told the London-based Arabic daily Al Sharq al Awsat that democracy contravenes the precepts of Islam by placing sovereignty outside God’s hands.

It is possible to debate how broadly this influence runs, but it is far from a fringe; it is highly influential in the Middle East and it is increasingly influential in the West. What is not debatable is whether this ideology exists, and whether those who adhere to it consider themselves to be at war with the United States and the West in general, and whether this ideology motivates a continuing threat to the United States and its interests around the globe. They do and it does.

American Interests and Strategy

Any realistic counter-terrorism strategy—which is to say any strategy intended to prevent attacks and in general to avoid losing ground to terrorists and their allies, rather than dealing with attacks after they have occurred and people have died and property been destroyed—has to accept the existence of the enemy.

There are those who have decried the ouster of President Morsi by the military as a blow to democracy and something to be opposed on those grounds. That depends on your definition of democracy. If it means a system in which a majority at a given moment can impose its views permanently on the rest of society, with no regard for the rights of the minority and no opportunity for the polity as a whole to reconsider what the majority has done, then yes, the removal of Morsi was a blow to democracy.

But if you believe that democracy involves a system grounded in respect for minority rights and open to the possibility of change in all direction, then perhaps what the Egyptian military has done is, as some have said, simply what the Wehr-macht should have done in 1933.

Movement toward and away from democratic norms requires consideration of Turkey under Prime Minister Recep Tayyip Erdogan and his AK Party, which is increasingly open as the Turkish branch of the Muslim Brotherhood. Over the summer, Istanbul residents resisted the government’s efforts to appropriate a park traditionally used as a gathering place to express opinions. The protests were largely peaceful, but the government decided their opinions were not welcome. Riot police with batons and tear gas met protesters with massive arrests and some brutal treatment.

That should have been big news—Turkey is a NATO country and the showcase of “moderate” Islamist governance. But it was never made the front page of The New York Times, and barely made the inside.

Another bit of news from Turkey, The New York Times apparently did not think “fit to print” concerns the record number of journalists arrested and harassed, and the hundreds of current and former military officers jailed—sometimes for years—under vague charges of conspiracy. These are extraordinarily undemocratic procedures, but Turkey under Erdogan is not about democracy. Turkey was a democracy before Erdogan came to power, but it is increasingly about Islamization. Erdogan himself has confidently announced that he finds the term “moderate Islam” to be “ugly and offensive,” adding, “There is no moderate or immoderate Islam. Islam is Islam; that’s it.”

No surprise. This is the same Erdogan who in 1994, as mayor of Istanbul, proclaimed himself a “servant of sharia,” and said that to Islamists, “democracy is just the train we board to reach our destination. When we get there, we get off the train.”

What is happening in Egypt, in Tunisia, in Syria, in Turkey, is less a springtime reverie than the melting of what had been the frozen swamp of politics in Muslim countries. It is going to be a long time before the forces unleashed there settle. That is NOT a suggestion that Muslims are somehow incapable of democracy, but it notes the reality that in Western Europe, it took several hundred years—until the Treaty of Westphalia in 1648—before inter-religious violence declined (and ethnic violence continues, albeit in modified form since the 20th Century). It may not take the Middle East as long as it took Europe, as they have a guidebook in the form of the experience of Western civilization that Western civilization did not have when it became Western civilization.

But it appears that violence will continue for some time and that it will be principally between and among Muslims as they try to sort things out for themselves. But some of the violence will be directed outward, at us. The United States cannot control the outcome of intramural disputes in the Muslim world, although we can take modest steps in some cases to help. In the interim, we must defend ourselves.

And that brings us to the United States, where President Obama declared to an audience at the National War College that the “war on terrorism” is over. That day, a British soldier was hacked to death on the streets of London, and his attacker cavorted in front of a camera waving his blood-soaked hands and shouting “Allahu Akhbar.”

Our principle weapon in this war is intelligence, but the wholesale dissemination of American intelligence information by hackers and leakers—and compromises to our ability to gather information—have been hailed even by some people with authoritative knowledge of matters of national security. That is distressing on its face, but it does offer an opportunity is to show that America can do better and not generate panic. The Administration and Congress need to show they are serious about our national security; that they are adults. There is no more adult issue—and no more important issue—than protecting the safety of the American people.

When people purport to find imaginary rights in the Constitution—or, more accurately, rights in an imaginary Constitution—serious scrutiny should be applied to their thinking. The drafters of the United States Constitution were practical men; they well understood the need for and the uses of secrecy. In fact, the Constitution itself was drafted in secret behind closed doors, even in the sweltering heat of summertime Philadelphia because the Founders understood they could not accomplish their task if people could not exchange views with the expectation that their words would not be disclosed and distorted and subject to pressure. The Constitution itself provides that although both Houses of Congress are required to publish a journal to record their proceedings, that requirement does not apply when in their judgment secrecy is required.

The United States must have as strong a commitment to a robust and intelligent defense as we do to small and honest government. If we do, the country will prevail. If we simply use the intelligence and national security debate as an excuse to run around and holler that the sky is falling, we won’t.

And if we don’t, we will have made the path of our adversaries toward our diminution or destruction that much easier.

Michael Mukasey was the 81st Attorney General of the United States, serving from November 2007 until January 2009.